This week at the Supreme Court, Nov. 30, 2009
The Supreme Court will consider new petitions for review on Tuesday, December 1, and may issue opinions on December 3. No oral arguments are scheduled until the Winter 2010 term resumes in January.
Today's Other Opinion: A complex LOC and U.C.C. Article 5
Alhadeff v. Kitsap Cmty. Fed. Credit Union d/b/a Kitsap Credit Union, No. 81833-9. A swanky condominium project, "The Meridian on Bainbridge [Island]," flopped, leaving the courts to sort through a letter of credit (LOC) controversy that the Supreme Court today deems "significantly more complex than a typical LOC transaction."
Developer Meridian received a construction loan from Kitsap Credit Union for $4,500,000. The Credit Union required that Meridian contribute equity in the form of a $1,000,000 LOC. Meridian arranged for the LOC from investor Jack Alhadeff, who authorized his bank, Wells Fargo, to issue the LOC to Kitsap Credit Union. The terms of the LOC required the Credit Union to certify that Meridian was not in default before drawing on the LOC.
Kitsap Credit Union drew on the letter three times, in May, June, and July of 2004, exhausting the full $1,000,000. Despite the Credit Union's certification each time that Meridian was not in default, two "events of default" had already occurred: a tax deficiency and the imposition of a construction lien by a contractor. The Credit Union was also aware that Meridian was exceeding its budget. In September 2004, Meridian asked the Credit Union for a further loan. The Credit Union eventually declared Meridian in default in November 2006.
In August 2006, Alhadeff sued Kitsap Credit Union alleging eight causes of action related to the LOC. The trial court granted the Credit Union's motion for summary judgment, finding the situation covered by U.C.C. Article 5 and the claims thus barred by the one-year statute of limitations. Alhadeff appealed, the Court of Appeals reversed the trial court, and Kitsap Credit Union appealed.
Today, the Supreme Court unanimously reverses the Court of Appeals, holding that the U.C.C. Article 5 statute of limitations does apply and that none of Alhadeff's claims survive summary judgment. Justice James Johnson wrote the opinion, which includes a helpful Diagram of Letter of Credit Transaction. And somewhere in there, reversed Court of Appeals Judge Theodore Spearman administered this author's oath of attorney. (briefs and argument)
Opinion: Court reinstates $8M judgment against Hyundai
Magana v. Hyundai Motor Am., No. 80922-4. In a 7-2 vote, the Washington Supreme Court reinstated an $8 million default judgment against the Hyundai Motor Company for its “willful efforts” to undermine pretrial discovery in a personal injury lawsuit brought against the company.
Jesse Magaña was riding in a 1996 Hyundai Accent, driven by Ricky Smith. They saw an oncoming truck driven by Dennis Nylander that appeared to be in their lane. Smith swerved, driving the car off the road. Magaña was thrown out of the rear window and was rendered a paraplegic due to his injuries.
Magaña filed suit against Hyundai Motor America and Hyundai Motor Company, the Smiths, and the Nylanders. At trial one of Magaña’s expert witnesses testified that a different seat belt design would have prevented Magaña’s injuries. Magaña prevailed at trial and was awarded over $8,000,000 in damages. On appeal the Court of Appeals reversed the ruling as it applied to Hyundai, and remanded for a retrial to address the issue of liability.
Prior to the retrial, Magaña moved for a default judgment against Hyundai. He argued it was impossible to prepare a case based on Hyundai’s responses to discovery in the original trial and in preparation for the retrial. The trial court agreed, and imposed a default judgment against Hyundai. The court found there was no agreement between the parties to limit discovery, that Hyundai falsely responded to Magaña’s interrogatories, that Magaña was substantially prejudiced in preparing for trial, and that evidence was spoiled and forever lost. The trial court decided the only suitable remedy was a default judgment.
The Court of Appeals reversed this ruling, writing that there was “no prejudice to Magaña’s ability to retry his case resulting from Hyundai’s discovery violations” and that lesser sanctions would have been appropriate.
Today the Supreme Court, with Justice Richard Sanders writing for the majority, overturns the Court of Appeals and reinstates the $8 million default judgment. Court rules authorize a trial court to impose sanctions when a party fails to satisfy discovery requests, which can range from exclusion of evidence to default judgment. Harsh sanctions are justified when: “(1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed.”
The Supreme Court ruled that the trial court had correctly found Hyundai’s responses to Magaña’s request for production and interrogatory “false, misleading, and evasive,” and that these actions substantially prejudiced Magaña’s ability to prepare for trial. The Court reinstated the default judgment, and awarded Magaña reasonable attorney fees and costs.
Justice James Johnson (joined by Chief Justice Gerry Alexander) dissents, writing that while Hyundai willfully violated discovery rules, the record did support the “substantial prejudice” and “lesser sanctions” prongs are not established on this record.
Tomorrow's opinions, Nov. 25, 2009
The Supreme Court will issue opinions in two cases tomorrow:
Alhadeff v. Kitsap Cmty. Fed. Credit Union d/b/a Kitsap Credit Union, No. 81833-9. Whether a financier who authorized his bank to issue a letter of credit to a credit union on behalf of a developer could sue the credit union for damages and equitable relief after the developer defaulted on the letter of credit agreement.
Magana v. Hyundai Motor Am., No. 80922-4. Whether the trial court abused its discretion by entering a default judgment in a product liability action as a sanction for the defendant's willful failure during discovery to disclose similar claims against it.
Are judges permitted to blog?
The Washington Ethics Advisory Committee has issued an opinion on whether judicial blogging is permitted under the Code of Judicial Conduct. Established in 1983 by the state Supreme Court, the Committee provides judicial officers with advice with respect to their ethical obligations.
The Committee's opinion on judicial blogging says "yes, but be careful" (my paraphrase).
The Code of Judicial Conduct does not specifically prohibit a judge from blogging on the internet. CJC Canon 4(A) permits judicial officers to write concerning the law, the legal system and the administration of justice provided that activity does not cast doubt on the capacity to decide impartially any issue that may come before them. Even though a judicial officer may post an internet blog that activity, in addition to the limitations of Canon 4(A), will also be subject to the limitations of Canon 2(A) and Canon 3. That is, a judicial officer should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and judicial duties must take precedence over all of a judicial officer’s activities.
The opinion goes on to give advice for blogging judges.
If the judicial officer does post a blog, the judicial officer may want to consider posting a disclaimer that the opinions expressed are only those of the author and should not be imputed to other judges. The judicial officer may also want to consider outlining constraints to which judicial officers are subject such as commenting on pending cases or discussing cases with persons appearing before the judicial officer’s court in order to avoid ex parte communication. If possible, the judicial officer should review a response before allowing it to be published on the blog or alternatively, regularly monitor the responses to make sure that the thread of the discussion does not change from that permitted by Canon 4.
This is an encouraging development. I agree, as the opinion states, that judges are in a unique position to improve the public understanding of the law. To my knowledge, Justice Tom Chambers is the only member of the state Supreme Court who maintains a blog. Perhaps we'll see more in the future.
Today's Opinion: To repay or not to repay the bail bond?
State v. William Joseph Kramer, No. 81071-1. All City Bail Bonds posted a $20,000 appearance bond for William Kramer, who subsequently failed to show up for his court hearing. The bond was ruled forfeited. All City attempted to persuade Kramer to turn himself in, and seven days after the missed hearing Kramer was re-arrested. All City requested that the order forfeiting the bond be vacated, but the state opposed and the trial court "found it was 'equitable to forfeit the bond because All City Bail Bonds did not take action to secure the defendant's presence in court.'" The Court of Appeals agreed.
The Court today reverses the courts below and holds that RCW 10.19.105 requires the bond be repaid minus any costs from recapturing Kramer. The opinion by Justice Madsen, joined by four other justices, quotes State v. Jackschitz, 76 Wash. 253, 136 P. 132 (1913).
Bail is not taken on forfeiture as money is taken for a debt due upon a valid consideration. The object of bail is to insure the attendance of the principal and his obedience to the orders and judgment of the court. There should be no suggestion of bounty or revenue to the state or of punishment to the surety.
Justice Fairhurst, joined by the Chief Justice and Justices Stephens and James Johnson, dissent.
Under the majority's decision, a surety is now free to ignore, or even be complicit in, a defendant's failure to show up for court-ordered appearances for a 60-day period without concern that its bond moneys will not be returned. The majority's decision rewrites Washington's bail bond statutes and dangerously undercuts the financial incentive for sureties to ensure defendants comply with the terms of bail. In doing so, the majority's decision fails to respect the balance of incentives for sureties spelled out by the legislature in chapter 10.19 RCW and undermines the equitable role of the trial court.
Today's oral arguments - Nov. 17, 2009
Today is the last day of arguments in the Fall 2009 session. Arguments will resume in the Winter 2010 session on January 12. The Court will hear three cases today, two in the morning and one in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Sound Infiniti v. Snyder, No. 81923-8. On appeal from Division One Court of Appeals, this case originated in Ki
ng County Superior Court. It concerns what remedies are available to a minority shareholder who's shares are taken away, and whether that shareholder can bring a derivative suit against the corporation after he has lost his shareholder status.
Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder.
The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Association of Washington Businesses filed an amicus brief supporting Snyder.
G-P Gypsum Corp. v. WA Dept. of Revenue, No. 81995-5. This case originated in Thurston County Superior Court, and was appealed through Division Two Court of Appeals. It concerns whether Tacoma may levy a natural gas tax on anyone who consumes it inside the city limits.
G-P manufactures wallboard in the city of Tacoma, a process that requires large volumes of natural gas. The company pipes the gas in from Sumas or Sumner. Tacoma taxed G-P for use of the gas in the city, but G-P argues that the tax should not apply because of how the word "use" is defined by statute. The relevant definition states that the term has its "ordinary meaning, and shall mean the first act within this state by which the taxpayer takes or assumes dominion or control." Because the gas first comes under G-P's control in Sumas or Sumner, the Tacoma tax shouldn't apply. But the Department of Revenue argues that the "ordinary meaning" of "use" is consumption, and thus the tax applies because G-P is consuming it within the city limits.
The trial court agreed with the Department of Revenue, but the Court of Appeals reversed.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. This case originated in Benton County Superior Court, and was certified on appeal to Division Three Court of Appeals. Both parties also moved for discretionary review, but the review was denied by the appellate court. The question before the Court is whether that denial of review was in error.
Columbia sued Benton on several grounds, all related to whether a physician-owned company providing orthopedic services can employ physical therapists. Both parties agree on the facts of the case, but differ on the applicable laws and cases. The trial court issued summary judgment on some of the issues and certified them to the Court of Appeals, and the parties asked for discretionary review. The Court refused the review, stating that the parties disagreed on what issues they wanted the Court to review.
The parties appeal to the Supreme Court, arguing that the denial of review departed so far from the "accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction" by the high court.
Today's arguments, Nov. 16, 2009
Today the Court will hear three cases, two in the morning and one in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Tobin v. Department of Labor and Industries, No. 81946-7. Jim Tobin was permanently disabled after being hit by a crane boom at work. He began collecting worker’s compensation benefits and sued the crane operator, settling for $1.4 million in damages. The majority of the damages were for pain and suffering. Under RCW 51.24.060, an injured worker is required to distribute a portion of a third-party recovery to the Department of Labor and Industries to reimburse the agency for worker’s compensation benefits. L&I claims that this includes a percentage of pain and suffering damages, since the statute says that “‘recovery’ includes all damages except loss of consortium.” Tobin argues statute was designed to reimburse L&I for benefits paid, and L&I does not pay benefits for pain and suffering.
Salas v. Hi-Tech Erectors, No. 81590-9. Alex Salas, a construction worker, fell off a scaffolding ladder and sued the company that set up the scaffold. At trial, the court allowed evidence that Salas is an illegal alien as he sought damages for lost future wages. On appeal Salas argues the trial court abused its discretion. The Court of Appeals affirmed the lower court decision.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
State v. Schaler, No. 81864-9. Glen Schaler called Okanogan Behavioral Health Care after having a nightmare, stating that he thought he had killed his neighbor. He continued to talk with OBHC staff, at one point stating that he hoped he hadn't killed his neighbor with a knife because he wanted to do it with his bare hands. He was eventually taken in to the hospital. He continued to state his intention to kill his neighbors, and was later charged with two counts of felony harassment. Crimes like harassment that regulate pure speech must comply with the First Amendment by showing that the defendant's speech was unprotected. In the case of harassment, this can be done by showing that the speech was a “true threat”—a threat a reasonable person would take seriously. At trial, the judge instructed the jury on the definition of “threat,” but not “true threat.” Schaler appealed, claiming that this violated his First Amendment rights. The Court of Appeals held that it was harmless error.
This week at the Supreme Court, November 16, 2009
The Supreme Court will hear arguments today and tomorrow, and may issue opinions on Thursday.
Are legal blogs inferior to newspapers?
This is slightly off-topic for this blog, but a news story I noticed prompted the question above. George Erb of the Puget Sound Business Journal has a report on Friday’s annual meeting of the Bench-Bar-Press Committee of Washington. The topic of a panel discussion: “Where have all the reporters gone?”
The answers are disturbing. I know that here in Olympia the political/government press corps has dwindled from 30+ reporters to just seven people in a few short years. Veteran reporters have “chosen” early retirement, government positions, or private-sector employment. David Ammons (Associated Press), David Postman (Seattle Times), and Joe Turner (The News Tribune)—just to name three—had decades of experience between them, and their insight and institutional memory is now gone. There are very good reporters left behind, but they’re the first to admit they’re stretched too thin.
The discussion on Friday covered these issues, with U.S. District Court Judge Robert Lasnik and Washington Chief Justice Gerry Alexander voicing concerns about the state of journalism .
But one comment caught my attention:
Peter Shaplen, a producer, consultant and educator, said the courts are seeing more bloggers. Unfortunately, blogs are less likely to provide the in-depth reporting that lays out the facts and arguments behind court opinions and verdicts, he said.
I’m not especially interested in the “blogs vs. newspapers” debate. But when it comes to legal reporting, Mr. Shaplen is wrong. I’m equally concerned about the erosion of the press, but blogs can and do provide in-depth reporting on legal issues and cases.
Consider this blog, for example. By the time the Washington State Supreme Court issues a ruling, we’ve written about that case numerous times: we announce the case when the petition for review is accepted, we provide previews and recaps of oral argument, we link to party briefs, we discuss the case’s procedural history, and we preview the case the night before the ruling is issued. We then unpack the Court’s opinions—covering both the story and the significant legal issues for the benefit of legal practitioners and laypersons alike. We’re also able to observe trends, comment on the nuances of developing case law, and translate particularly complex legal issues. The political reporters in town do a fine job. I’m not saying they don’t. But the lawyers writing for our blog offer an expertise and depth of analysis that a general assignment reporter can’t match.
The ease of online publishing allows subject-matter experts to offer their views to the public without the barriers they would face if trying to get quoted in the New York Times or on 60 Minutes. Take any area of law, and there’s probably a legal professional blogging on that topic. Attorney Bill Marler is a leading expert on food poisoning outbreaks and litigation and writes about the topic on his blog. Want to know about equestrian law? You’d better be reading Alison Rowe’s Equine Law Blog.
Legal professionals are filling the void created by the death of print journalism, and the public is well-served because of it.
Friday fun: Halloween at the court
Justice Debra ("Gangsta") Stephens and Chief Justice Gerry ("Big Dawg") Alexander at the court's annual Halloween party.
Today's Opinions: Blakely claims another sentence
In re the Personal Restraint Petition of Beito, No. 77973-2. Jessica Dawn Seim was 14 when she was raped and murdered by Corey Beito, who was arrested and charged with aggravated murder in the first degree. Beito eventually pleaded guilty to murder in the first degree and was given an "exceptional sentence" above the standard range of 291 to 388 months in prison. Beito had admitted to both the rape and the murder; the connection between them was the grounds for the above-range sentence. Beito challenges that sentence in light of Blakely, which was decided before Beito's sentence became final. The Court today, in an opinion by Justice Charles Johnson and joined by six other justices, reverses Beito's sentence and remands for sentencing within the standard range.
A review of the record shows Beito did not stipulate to the exceptional sentence or the fact that the rape was motive for and closely connected to the murder. Under Apprendi, without such an admission by Beito, a jury and not the trial court should have determined whether aggravating factors that support an exceptional sentence (if any) existed. We hold that, without more, the trial court violated Beito's Apprendi/Blakely Sixth Amendment right to a jury trial.
Justice James Johnson, joined by Justice Fairhurst, dissents and argues that Beito stipulated to all the relevant facts and avoided a jury trial and that any remaining error was harmless. (briefs and argument)
Opinion: school salary disparities are not unconstitutional
The Supreme Court today says that education salary disparities between school districts do not violate the Washington Constitution. The case is Federal Way School District 210 v. State, No. 80943-7 (briefs and argument).
In 2006, the Federal Way School District, along with district employees, parents and students, sued the state, arguing that funding disparities violate the duty of a “general and uniform” school system. Education funding is a complex formula of federal, state, and local funds that are distributed to individual school districts, and employees in different districts are often paid different amounts. For example, the State allocation to districts for the 2007-08 school year ranged from $32,746 to $34,612 among teachers and from $54,405 to $80,807 for administrators.
King County Superior Court Judge Michael Heavey ruled that the state’s funding model violates the “general and uniform” duty, and violated the state’s equal protection clause by paying similarly-situated school employees differently.
There are two educational sections of the state constitution at play here. One requires the state to make “ample provision” for the education of all children (Art. IX, Sec. 1), while the other section mandates a “general and uniform system of public schools” (Art. IX, Sec. 2).
The plaintiffs argued that the “general and uniform” provision is violated when school employees are paid different amounts. They argue the state’s obligation is not just ample funding, but ample funding within a general and uniform system. In response, the state argued that where the “ample provision” for basic education is met, variances in school funding allocations are of no constitutional significance. The constitutional duty is to create a common education system (uniform academic learning requirements, graduation standards, teacher licensing standards, uniform discipline standards), not to guarantee precisely equal funding to every district.
The Supreme Court, with Justice Jim Johnson writing the unanimous decision, soundly rejected the school district’s case—ruling to uphold the existing funding allocation system.
The Court wrote that education funding has historically varied statewide, and that the legislature has attempted to shrink disparities over time. The uniformity requirement, according to the Court, means that every child has the same educational advantages. “Our cases discussing article IX, section 2 make it clear that the provision requires uniformity in the educational program provided, not the minutiae of funding.” The Court also ruled that the individuals parents, students, and teachers challenging the funding allocation model are unable to show any direct harm and therefore are not able to challenge the funding model.
The legislature’s use of the staff unit allocation system to fund education with differing salary allocations to school districts with historically disparate average salaries does not violate article IX, section 2, although there remains a slight gap between the highest and lowest salary funding statewide. There is no showing that the legislature’s funding allocations, including those for Federal Way School District, do not constitute “ample provision for the education of all children” as required under article IX, section 1. The legislature has acted well within its constitutional authority and its duty to make ample provision for the education of children and to provide for a general and uniform system of education under article IX. The individual respondents’ claims do not meet requirements for justiciability and should be dismissed. Accordingly, we reverse.
Tomorrow's opinions: school funding & exceptional sentences
The Supreme Court will issue opinions in at least two cases tomorrow.
Federal Way School District 210 v. State, No. 80943-7 (briefs and argument). Whether salary disparities between school districts are unconstitutional. The Washington Constitution states that “The legislature shall provide for a general and uniform system of public schools.” Art. IX, § 2. Historically, the state pays different amounts per teacher to different school districts, based in part on the salary levels of those districts when the system was initiated. The Federal Way School District, individual teachers, and students sued the state, claiming that this unequal funding violates the constitution because it is not “general and uniform.” The King County Superior Court agreed, finding that the differences in funding had no relation to differences in education costs. The state counters that its constitutional duty is to create a common education system, not to guarantee precisely equal funding to every district. This case is on direct appeal from superior court.
This case has the potential of significantly altering school funding allocations. A ruling for the school district favor would have no immediate impact—the ruling would be declaratory in nature, and it would be up to the state legislature to respond and design a general and uniform education funding model within the guidelines of the ruling. During argument the justices seemed reluctant to meddle in the educational decisions of the legislature.
In re the Personal Restraint Petition of Beito, No. 77973-2 (briefs and argument). This case arises out of the Court of Appeals (Div. 2), and concerns whether it is a violation of due process for a trial court judge to set an exceptional sentence based on facts which were not proven beyond a reasonable doubt to a jury.
Beito pleaded guilty to first degree murder of a 14-year-old girl, with a maximum penalty of 374 months in prison. The trial court sentenced him to 504 months after finding aggravating circumstances demonstrating he also committed third degree “rape of a child” in connection with the murder. The finding was based on factual statements that were agreed to by Beito, but he did not agree there was a connection between the rape and murder. That was determined by the judge. He filed a Personal Restraint Petition alleging due process and double jeopardy violations. The Court of Appeals dismissed the petition.
Today's oral arguments - Nov. 10, 2009
Today the Court will hear four cases, two in the morning and two in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Parmelee v. O'Neel, No. 82128-3. This case arises out of Division Two Court of Appeals, and originated in Clallam County. It concerns whether a prisoner is entitled to attorney fees if he gets an appellate court to vacate an infraction complaint against him and declare the underlying law unconstitutional.
Allan Parmelee, who is currently incarcerated, wrote a letter to the Department of Corrections calling the superintendent of the Clallam Bay Corrections Center a "man-hater lesbian." The DOC issued a serious infraction order against Parmalee for violating the state's libel law. Parmalee sued the department for free speech violations and retaliation. The trial court dismissed his suit.
But the Court of Appeals ruled for Parmalee, finding the libel statute unconstitutional and vacating the infraction order. The Court also reversed the dismissal of Parmalee's suit, and sent it back down to the trial court for further proceedings. Parmalee claims attorney fees, but the Department argues that only one of many issues has been decided, and therefore the elements for an award of attorney fees are not yet satisfied.
McCurry v. Chevy Chase Bank, No. 81896-7. Originating in King County Superior Court, this case is on appeal from Division One Court of Appeals. It concerns whether bank fees charged in relation to a Washington home loan are governed by the federal Home Owners Loan Act.
The McCurry's had a mortgage through Chevy Chase, which they fully paid off. When they did so, the bank charged them a $20 fax fee and a $2 notary fee before signing the house over to them. The McCurry's paid the fees and then filed a class action suit under state law against the bank for illegal fees. The trial court dismissed it because the state law is preempted by the federal Home Owners Loan Act. The McCurry's argue that the facts of the case don't fall under the federal law.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
Kelly v. Culp, No. 81855-0. This is a land-use case from Chelan County, in which the Court must determine whether the time limit for using a building permit is extended if the permit is terminated by a trial court and then appealed.
A developer (Culp) obtained a two-year conditional use permit in Chelan County for a development project, but several neighbors, including Jeff Kelly, filed a land use petition against him. The trial court sided with Kelly and terminated the permit. During the proceedings the two-year time limit ran out. When Culp appealed the decision, Kelly moved for dismissal on grounds of mootness because the permit was invalid. Culp argues that the time limit was paused automatically during the court challenge, but the Court of Appeals found that he could have asked for a stay. By not doing so he allowed the time to expire.
Tracfone Wireless, Inc. v. WA Department of Revenue, No. 82741-9. This case originated in Thurston County and was appealed to Division Two Court of Appeals. It concerns whether pre-paid wireless providers must pay the E-911 tax.
Tracfone sells prepaid wireless cards and phones. They paid the Department of Revenue the appropriate E-911 tax for the phone services, but then determined that was an error, claiming that the tax does not apply to prepaid wireless. Even if it does, Tracfone argues that because it does not sell service directly to consumers it has no duty to collect the tax. Tracfone is suing for a refund of the tax paid to the department. T-Mobile and CTIA-The Wireless Association filed an amicus brief supporting Tracfone's position.
New cases accepted for review
The Supreme Court agreed to review several new cases, reviewing issues such as the suppression of breath test results and whether a person has a constitutional right to honk her horn at a neighbor.
- State v. Mitchell, No. 83169-6
- State v. Ervin, No. 83244-7
- State v. O’Connor, No. 83261-7
- City of Seattle v. Jacob, No. 83277-3
- Curtis v. Lein, No. 83307-9
- State v. Ish, No. 83308-7
- State v. Immelt, No. 83343-5
- State v. Meneses, No. 83172-6
This week at the Supreme Court, Nov. 9, 2009
The Supreme Court will hear oral arguments on November 10 and may issue opinions on November 12.
Justice Barbara Madsen's opinions
With the news that Justice Barbara Madsen will be the Washington Supreme Court’s next chief justice, we thought this would be a good opportunity to review some of her noteworthy opinions. Since her election to the court in 1992, Justice Madsen has written a number of significant opinions in areas such as campaign finance, gay marriage, property rights, nude dancing ordinances, and constitutional interpretation.
Continue Reading...Chief Justice Madsen
Today Justice Barbara Madsen was elected by her colleagues to be Washington's next Chief Justice, according to the Seattle PI and the Associated Press.
Madsen, who before becoming a judge served as both a public defender and a prosecutor, will become Chief in January. She will replace Chief Justice Gerry Alexander, who decided to step down from the position prior to his mandated retirement from the bench at the end of 2011. He will turn 75 that year, the mandatory retirement age for Washington Judges, as we discussed with him in our most recent podcast.
UPDATE: Here is the Court's press release.
Today's Opinion: Separate or Community Property?
In re the Estate of Borghi, No. 80925-9. Jeanette Borghi purchased a parcel of property in 1966 subject to a real estate contract. Nine years later she was married and a few months after that, a special warranty deed was issued to her and her new husband in both their names. She died intestate (without a vawill) in 2005, leaving her husband, Robert, and her son from a previous marriage, Arthur Gilroy, as heirs.
If the land was Jeanette Borghi's separate property, Gilroy is entitled to a half-interest in it. If it was community property, it passes to the husband's estate (he followed his wife in death). The character of the property is the question before the Court. Four justices join a lead opinion by Justice Stephens, holding that the property was and remained Jeanette Borghi's separate property.
The lead opinion reiterates that the character of property is established at the time of acquisition. In this case, the property was acquired by Borghi in 1966. Thus it was brought into her second marriage as her separate property, with a presumption that it remained her separate property. That presumption can only be overcome by "clear and convincing evidence." The lead opinion holds that the inclusion of both names on the title was insufficient to change the character of the property and goes on to discuss what kind of evidence might meet that standard.
Justice Madsen writes a short concurrence, providing the tie-breaking fifth vote but narrowing the holding. She argues that the discussion of what sort of evidence in addition to the deed is necessary to achieve the "clear and convincing" standard is unnecessary since no such evidence was presented in this case.
Four justices dissent in an opinion by Justice Owens that argues for a stronger "community titling presumption." (Briefs and argument)
Tomorrow's opinions, November 5, 2009
Tomorrow the court will release opinions in at least one case.
In re the Estate of Borghi, No. 80925-9. This case is on appeal from the Court of Appeals (Div. 1), and concerns a probate dispute over whether a parcel of real property is community or separate property. The Court must decide whether real property contracted for before marriage remains the separate property of the purchasing spouse, even though the property deed was issued after the marriage and names both spouses. (Briefs and argument.)
Q&A with the justices
The Washington State Supreme Court recently heard two cases at Peninsula College in Port Angeles last week as part of the court's "On The Road" initiative to bring a live example of the judicial system to students and citizens. After each argument last week the justices entertained questions from the audience, which can be seen below.
This week at the Supreme Court, Nov. 2, 2009
There are no arguments scheduled this week. New petitions for review will be considered on November 4, and the court may issue opinions on November 5.
Additionally, the justices will be voting this week to select a new chief justice. Chief Justice Alexander explained how this process works during last week's appearance on the podcast.
